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Immigration Options for Post-Docs and Scientists

This article provides information on various immigration options available for post-docs and scientists, including H-1B visa, J-1 waivers, O-1 visa, and permanent residence status. It also includes a Q&A section addressing common questions.

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Immigration Options for Post-Docs and Scientists

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  1. Immigration Optionsfor Post-Docs and Scientists Klasko, Rulon, Stock & Seltzer, LLP Suzanne B. Seltzer Philadelphia - New York

  2. Immigration OpportunitiesAgenda • H-1B Quota • J-1 Waivers • The O-1 Visa • Permanent Residence Status • Q&As

  3. H-1b Quota • What is it and what does it mean? • Who is not subject to the quota? • Universities • Nonprofit institutions affiliated with universities • Employed “at” university • Nonprofit or government research organization • Previous H-1B under cap • Concurrent employment • Cap Exempt to Cap Subject

  4. J-1 Visa • Who is subject to 2-year return? • Exchange Visitor Skills List • Right Skill? • Right List? • Government Funding • U.S. or Home Country • Direct or Indirect • Graduate Medical Training

  5. What Doesit Mean to be Subject • Ineligible for Certain Visas • H-1B • L-1 • K • Ineligible to apply for final step of Green Card • I-485 • IV Consular Processing • But may commence initial steps…

  6. If Subject, Are there Options? • Return home • Where is home? • Aggregating trips • Apply for a Waiver • Obtain an O-1 Visa • Requires an employer willing to sponsor • Must Demonstrate “Outstanding” in field

  7. J-1 Waiver Options • Waiver options • Hardship • Persecution • No objection waiver • Federal government agency waiver • Health & Human Services • National Science Foundation • Department of Energy • Other IGA

  8. O-1 – Alien of Extraordinary Ability • Factors Considered in Initial Evaluation • 1st authored articles/impact factors • Citations to 1st authored work • Conference presentations • Book Chapters/review articles • Peer reviewer/manuscript reviewer

  9. O-1 (cont’d) • What’s Included in the Petition • Reference letters • Independent referees • Addressing O-1 criteria • Corroborating Documentation • Processing time/issues • Length of approval • Extensions

  10. What is Permanent Residency? • Authorization to Live & Work Indefinitely in the United States • “Immigrant Visa” • The “Green Card” or “Form I-551” • Not always ‘forever’ – may be abandoned or taken away

  11. Immigrant vs Non-Immigrant Visas • Immigrant Visa • Green Card/Permanent Residency • Non-Immigrant Visa (NIV) • H, F, J, O, etc • Limited duration • Specific to employer/institution • Specific to purpose (work/study/tourism)

  12. How Do I Apply? • Family • Investment • Asylum • Employment • DV Lottery

  13. Permanent Residency Quotas • Annual Limit on Permanent Residency • Per Country Limit – 7% • Allocated by: • Priority Date – place in line • Preference Category

  14. Permanent Residency Quotas • Employment Based Preferences • First Preference (EB-1) • Extraordinary Ability, Outstanding Researcher, Multinational Executive • Second Preference (EB-2) • Nat’l Interest Waivers, Advanced Degreed Professionals, Bachelors plus 5 years exp. • Third Preference (EB-3) • Skilled Worker (2+ years experience), Bachelor’s Degree

  15. Permanent Residency Quotas, Where Are We Now? Visa Bulletin for November 2011

  16. Permanent Residency Quotas,Where are We Now? • “Oversubscribed” versus “Available” • Available if: • Visa Bulletin indicates “C” = current • Priority date earlier than posted date • Predictions from State Department for FY2012 • EB-1 approvals are down almost 50% • This will advance EB-2 in China or India • China EB-3 will advance a little; India EB-3 not at all

  17. Employment Based (EB) Permanent Residency • Employer-sponsored or self-sponsored • Labor certification or extraordinary/national interest/exceptional • Multiple petitions • Multi-Step Process • Non-Immigrant Status?

  18. Employment Based (EB) Permanent Residency: EB-1 Extraordinary Ability/EB-1 (I-140, filing fee $580) • “One of a Few at the Top” • ‘Self-Petition’ – no need for employer sponsor • Factors Considered in Initial Evaluation • 1st authored articles/impact factors • Citations to 1st authored work • Conference Presentations • Peer Review/Manuscript Review Work • References from independent Experts • Documenting Regulatory Criteria • Preparation/Processing Times

  19. Employment Based: EB-1 (cont’d) Outstanding Researcher/EB-1 (I-140, filing fee $580) • Similar to Extraordinary Ability • Requires employer sponsor • At least 3 Years experience • Permanent job offer • Qualified Employers: • Academic Institutions • Industry • At least 3 FT researchers • Recognition in field

  20. New EB-1 Guidance (Kazarian) • Issued December 2010 • Establishes Two-Part Analysis of EB-1 • Does Petition Contain Evidence of Requisite Number of Criteria? • ‘Final Merits Analysis’ – does evidence demonstrate that beneficiary is one of a very few at the top of the field?

  21. New EB-1 Guidance (cont’d) • Implications of Two Part Analysis • ‘Final merits analysis’ is an opportunity to second guess the criteria – more subjective adjudication • USCIS provides no clear guidelines for applying final merits analysis • Confusion among adjudicators as to the correct standards to apply

  22. Employment Based: EB-2 National Interest Waiver/EB-2 (I-140, filing fee $580) • Self-Petition, no employer sponsor req’d • Three Prong Test • Field is of Substantial Intrinsic Merit • National Impact of Your Contributions • You Are “Substantially Better” Than Your Peers • Preparation/Processing Times • India/China backlog

  23. Employment Based: Employer Sponsored (cont’d) • Labor Certification Application (PERM) • Employer MUST Pay Costs • Recruitment • Prevailing wage • First of 3 steps • 2nd Step – I-140 • 3rd Step – I-485 or IV Consular Process • No filing fee for this step

  24. Permanent Resident StatusAdjustment of Status (I-485) • Timing • Preference categories/quotas • Priority dates • Processing times • Concurrent filing (I-140/I-485) • I-485 filing fee $1070, includes: • Employment authorization (I-765) • Advance parole (I-131)

  25. Permanent Resident StatusAdjustment of Status (I-485) (cont’d) • Adjustment portability • H-1B Extensions • One Year • Three years • Spouses

  26. Issues Relating to NIV Status During Permanent Residency Process • Travel • Extensions of Status • Dependents • Eligibility for OPT

  27. Questions Any Questions?

  28. Contact Information Suzanne B. Seltzer, Esq. • Telephone: 212-796-8840 • Fax: 212-297-1799 • Email:sseltzer@klaskolaw.com • Websites:www.klaskolaw.com www.eb1immigration.com www.eb5immigration.com

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